Why DOJ Is Likely to Accept Vaughn Walker’s Ruling
As I posted earlier, Judge Vaughn Walker ruled against the government in the al-Haramain case today. Basically, Walker ruled that al-Haramain had been illegally wiretapped and the case should move to settlement judgment (corrected per some lawyer).
But there’s more to it. I think Walker has crafted his ruling to give the government a big incentive not to appeal the case. Here’s my thinking.
As you recall, last year when Walker ruled that al-Haramain had standing and therefore its lawyers should get security clearance that would allow them to litigate the case, the government threatened to take its toys–or, more importantly, all the classified filings submitted in the case–and go home. After some back and forth, Walker instructed the parties to make their cases using unclassified evidence; if the government wanted to submit classified evidence, Walker said, then al-Haramain would have to be given clearance to look at and respond to the evidence. The move did two things: it neutralized the government’s insistence that it could still use State Secrets to moot Walker’s ruling that al-Haramain had standing (and, frankly, avoided a big confrontation on separation of powers). But it also forced the government to prove it hadn’t wiretapped al-Haramain illegally, since it had refused to litigate the case in the manner which Congress had required.
The government basically refused to play. It made no defense on the merits. Which made it easy for Walker to rule in al-Haramain’s favor.
That’s the big headline: that Walker ruled the government had illegally wiretapped al-Haramain.
But there were two more parts of the ruling that are important. First, Walker refused al-Haramain’s request that he also issue an alternate ruling, one that relied on his review of the wiretap log and other classified filings, that would amount to a ruling on the merits. He basically said that such a ruling would muddy up the record if and when this case was appealed.
He also dismissed al-Haramain’s suit against the only remaining individual named as an individual defendant, Robert Mueller.
These last two parts of the ruling are, I think, the big incentives Walker has given for the government to just accept this ruling.
If this ruling stands, al-Haramain will get a ruling that the wiretapping was illegal. The government will be directed to purge any records it collected from its databases (I’ll explain in a later post why I think this will present some problems). And it’ll be asked to pay a fine, plus legal fees. But the fines, at least ($100 per day per day of illegal wiretapping) might end up being a relative pittance–tens of thousand or hundreds of thousand of dollars. Sure, there will be punitive fines and legal fees for four years of litigation. But the government was happy to settle Hatfill and Horn for millions, why not have this be done for the same range of millions?
What al-Haramain won’t get–unless it litigates some of the other issues in the case, which likely can be dismissed with State Secrets–is access to what the government was doing. Or details of how it came to be wiretapped illegally.
I’m betting that the government will be willing to accept the ruling that it illegally wiretapped al-Haramain in exchange for the ability to leave details of how and what it did secret, leaving the claim of State Secrets largely intact.
There is little risk that other people will sue on the same terms al-Haramain did, because few, if any, other people are going to be able to make the specific prima facie case that they were wiretapped that al-Haramain did. Few people are going to be able to point to public FBI statements and court documents to prove their case, as al-Haramain was able to. And anyone who does sue will end up before Walker, who has dismissed all other suits precisely because they lacked the specific proof that they were wiretapped that al-Haramain had. Plus, with the extent to which Congress has already gutted FISA, there’s little risk someone could sue going forward.
Since Walker dismissed the suit against Mueller, the government doesn’t have any individuals on the hook still for this illegal activity.
And, finally, by accepting this ruling–which argues that only if Congress has provided very specific guidance about court review, will a law automatically trump State Secrets–the government preserves the status quo on State Secrets largely intact (unless and until the full 9th Circuit panel upholds the Jeppesen decision, but I have increasing doubts they will).
So you decide. If you’re President Obama and Attorney General Holder, both of whom have already said that the illegal wiretap program was illegal, which are you going to choose? Accepting a ruling that says it was illegal, in exchange for keeping the details of that illegality secret? Or the invitation to take your chances with an appeal?
Unfortunately the sellout in the WH is playing with the cheney/bush playbook. Justice has become a pejorative term in the present WH as it was in the previous administration.
I guess this leaves out the possibility you are merely arguing a contrarian view. *g*
The government will take this deal, but they’ll challenge any order to purge the databases.
Boxturtle (Personally, I think they’re DANCING at the White House)
Given what they’ve said about the circle of influence datamining (or whatever they call their 6 degrees of separation stuff), I think they’ll claim they CAN’T purge it, which is what they said about purging stuff in response to the Exigent Letters IG Report.
So we might still get some interesting fights over that.
I think this is the very reason they have to appeal. Walker will order them to purge the records (the summary judgement on FISA almost compels it). When he does, the government will say oh we can’t do that. Walker will say oh yes you will and you’re going to tell me how you plan to do it. Then, al-Haramain will say that they won’t sign off unless they can somehow verify that the purging has been done. Then, the government will have what my mom and dad call a conniption fit.
If the government says they can’t purge the data, they will be lying. Just because it screws up the whole fricking database is no excuse for not purging the data. The government got busted. They should pay the price.
The third option is that the government lies. They say they purge all the stuff and simply do not, or transfer it to at third party and delete their own.
Yep. You think they’re going to let Vaughn Walker see who ELSE is in that database?!?!?
Or transfer it to a back room in the $2 BILLION (BILLION with a B) Utah data farm
You mean like transfer it to some GOP data contractor, right?
I do agree we’ll have some interesting fireworks over purging. I’m just not certain that that’s enough to prevent Holder and Obama from grasping at this opportunity.
How would the gov prove that they’ve purged the files?
See, that’s the problem. Assume they actually CAN purge the data. They must satisify the court that the action has been taken and their word is not worth much with Walker (He KNOWS they lied in court filings) and is worth nothing at all to Al-H.
If we assume they are telling the truth, they CAN’T purge that data without deleting everything (In which case there’s a computer programmer somewhere who should be fired), then they will still have to prove that’s the case.
I encountered a case like this only once, and the judge responded by appointed a special master to determine the technical facts and report to the court. I’m sure the government would fight a move like that tooth and nail, they would not want a neutral third party to know anything at all about what they’re doing.
Boxturtle (My bet is the government simply lie, if ordered to purge)
I am curious, EW, as to who might put up such a “fight”?
Given the overwhelming lack (apparently) of curiosity on the part of the courts, and Congress, who would smile upon any who would dare question our nation’s compelling bi-partisan and Three-Branch-supported interest in “looking forward” and “moving on”?
On what basis, that would be accorded standing in the courts of this nation, today, could anyone argue persuasively that once a government, possibly ANY government or ANY enforcement entity (including the police) which has “information” that it has obtained, by whatever means, that it would willingly or even that it even should, “purge” or destroy such information? Beyond that, who, rationally and reasonably, could “believe” that any such claimed purge or destruction occurred?
Those at the “top” have so easily, and in such short order, dismantled the rule of law, with, as was intended, no cost to themselves, that any supposition of anything other than “business as usual” and full-steam ahead into the future of endless war, a ready willingness to torture, an equally ready willingness to twist the law, by all three “branches”, to cover criminal behavior, in which, now, all are complicit, the ever greater use of secrecy, and heightened fear-mongering, as the essential tools of the political class; any supposition, of “something” to really challenge, or possibly thwart this likely “future” is most welcome.
Otherwise it is all show and nonsense.
Either way “things” go, one imagines that about half the lawyers in the nation will be disgusted, or at least, annoyed.
DW
I will. You can just call me the Little Red Hen.
AN EVOLUTIONIST’S PARADISE
http://www.pathlights.com/ce_encyclopedia/Encyclopedia/10mut11.htm
That’s pretty much what I said in my comment down the other thread – the government would be idiotic to appeal and by not appealing, this decision will not be precedent for anyone other than someone with exactly the same facts as al-H.
As to the dificulty of purging it -I’ll leave that to the experts. I will say, though, that the destruction of privacy-infringing databases ordered by the decision of the German Constitutional Court in their decision tossing a German surveillance statute a couple weeks ago, was reported by German radio to have been largely completed within a week of the decision being handed down, and is now complete. And that was a record of basically every internet search, phone call, text, internet banking transaction and other internet activity of everyone in Germany. The prime difficulty I posit the US would have in complying with Walker entering such a destruction order as to al-H would be in the parsing out of just the al-H material from everything else they’ve hoovered up.
If I’m the plaintiffs, I want to continue litigating the other parts of the complaint, to see what I can get out in discovery. I think the opinion holding, implicitly, that there was no warrant would make out a prima facie case of violating the Fourth Amendment, and that it was the attorneys’ calls tapped makes out the violation of the Sixth Amendment.
Some would argue this is the very definition of government. *g*
As a lifelong contrarian, I’ll jump in with some contrary thoughts (though I’m not ready to say these are my beliefs *g*):
1. The government will feel it necessary to appeal in order to protect States Secret Privilege trumping FISA. Though I see your precedent point in theory, that won’t stop other litigants from trying to shoehorn it into their cases. And possibly being successful. And why wouldn’t these other litigants take the plunge? When has the government ever ceded legal ground with respect to its powers? The times are few and far between!
2. The possibility that the government might lose on appeal has some merit as another theory, but from all that I’ve seen, the federal courts have been extremely deferential in every case of SSP invocation all the way back to its original usage. That body of precedent has a substantial weight that can’t be factored out of the appeal equation. Even the 9th has found the SSP to be a prohibitive hurdle in cases in their balliwick.
Right. But the argument Walker has made–that when Congress says “this is a law the executive can’t break but here’s how to litigate it”–is not yet a precedent. If it were to become one, then it’d be applicable in narrow other cases, and many more if Congress wrote it into law. And, like the Horn case, it’s a much bigger slam dunk than SSP generally.
Or put it this way. The govt can go to Kennedy with a generalized SSP case, or a narrow one, as al-Haramain would be if it were appealed on SSP grounds.
Which one do you think they believe they stand a better chance of? Particularly since Jeppesen is likely to be before Kennedy in a matter of months anyway?
I do see the point that the government has more, perhaps better opportunities to solidify SSP as pre-eminent which might make al-Haramain nothing more than a curious, but meaningless judicial footnote, but that assumes rational actors making the appeal/no appeal decisions.
In opposition to that, there seems to be quite a legacy of legal folks, both in the DOJ, and more generally, across administrations in the White House, who can’t tolerate giving an inch wrt Executive branch power, and in the case of SSP invocation, that takes on the appearance of a redline that must never be allowed to be crossed.
Another point I’d raise is just what really are the risks if the government appeals?
If, as some have pointed out, this is hardly a general precedential ruling, then the case must be that even if the government lost the appeal, that final ruling would likely also have a limited and decidedly narrow applicability.
Another factor that may lend credence to a government appeal, and perhaps related to my “legacy legal folks” point, is the fact that under the DOJ’s “revised” process for SSP invocation, the DOJ pointedly chose to do so with the al-Haramain case.
Having apparently arrived at an analysis that their SSP invocation in the al-Haramain case was justified under these new DOJ SSP invocation rules and processes, it would be likely that these very same folks would lean toward continuing the fight over SSP trumping FISA.
And the EFF apparently feels contrarian as well *g*:
Ah, now I know the answer to the question I sort-of raised in the first thread. Holder will announce the decision not to appeal on Friday.
LOL. Cause he’s not gay and he IS a hoops fan.
Toward judgment, not settlement (although there are avenues that settlement could be germane I suppose).
Totally OT from the DOJ Inspector General about the FBI’s longsuffering new Sentinel electronic case management system:
Status of the Federal Bureau of Investigation’s Implementation of the Sentinel Project, Audit Report 10-22, March 2010 (16 page PDF)
I found this part on page 10 amusing:
Shorter Lockheed Martin: “Anybody with an FBI active account should be able to change any FBI document. What’s wrong with that?”
oh ghu. I didn’t think Lockheed was that dim. (Hell, at work I can’t change any document I can access – there are entire file systems where I have read-only access, assuming I can find the one I’m after.)
Marcy,
This is OT, but [if you haven’t seen it already] you may be interested:
Steve Kappes, Profiled; By Scott Horton; 3/31/10
http://www.harpers.org/archive/2010/03/hbc-90006806
My apologies, Marcy. I just got around to reading comments on an earlier thread, and realized that [of course !] you were already on top of this. :-) I’m just really way slow and must seem pretty dumb…sigh.
OT, but news of how important Jason’s report on the DoJ concessions re AZ has been:
This is one of the security certificate cases, which I can explain another time. It deserved to collapse, and now it will. What we really need is a formal inquiry into CSIS complicity with the torture regime, but it’s late, and at the moment all I want to say is — good goin’, Jason!
And EW too, and all the commenters here who have kept tugging at the threads of the obvious lies re AZ. Well done, all.
Calling Eric Holder . You have evidence of a felony by George Bush Jr.
When he takes a break from his torture investigation there’s some penalty for these lawless acts like $1000 fine and 5 year prison term for those who order the taps, EACH ONE. I quick count three between the lawyers and the client.
This is holder’s test, along with the torture.
These crimes could only be committed by the nations top Government officials.
Is he a liar in his oath of office or will he enforce the law of the land?
Go ahead Eric charge these BASTARDS now or show the whole world the idea of laws is a joke on the little guy.
At the risk of belaboring the obvious, Holder had PROOF (not evidence) of felonies by at least Bush, Cheney, Rice and Rumsfield not later than the end of the week of his confirmation. He has chosen (or was ordered) not to take any action.
Those orders will not change.
Boxturtle (IMO, a decent man should have resigned as AG somewhat before now)
They won’t change unless there is a political change to make them change.
I keep hearing that people are angry. I think illegal and endless wars are a part of that, but of course big media will not admit it, so they only gloss over why they are angry. That doesn’t do anything to make it actually go away.
New post up top…
I’m betting the government will appeal, if Holder believes the Supreme Court will grant cert (assuming the 9th Circuit upholds Judge Walker’s decision) and Justice Swingman (er, that would be Kennedy) will vote with the troglodytes.
O/T (Old Topic): Oh, boy!
Ohio Pastors File IRS Complaints Over C Street House
LINK.
What an interesting case. I take it that not even the judge knows exactly what the Government was doing nor would he have any reasonable way to check to see if the Government complied with his ruling. The dollar figure of the daily fines is irrelevant when the party can print the money as needed. The hook here is once the Order is issued, the judge can use his equitable powers to hold officials in contempt of court if the Order is not obeyed.
The judge should have appointed as special master someone who’s previously been in a position with the highest security clearance (like say, former Attorney General Richard Thornburgh) to review the program and report back on whether the Government is in compliance with the law.
Not Thornburgh he is nothing but a REPUK Hack
When is someone going to go to Jail??????????? not only for this but Wall Street and the Banks
I’d have to think this through some and read more of the earlier decisions, bc I have never really followed these cases super closely, but I’d tend to think Gov will appeal for a few reasons.
First, and with Obama the biggest, the political aspects of the decision. I just don’t think it’s going to sell well with his other “strong on national security” strategies to date to roll over on this case and this ruling.
Second, I don’t think they lose all that much by appealing and while they drag that out, they can claim their creds (see, First) and probably delay things past Obama’s next run. On what they lose by appealing – it seems to me the main issues working for them are 1. as you’ve noted, the Mueller ruling (and that just isn’t going to change at any point on appeal and DOJ can fund him and his lawyer); 2. The fact that al-Harramain and lawyers will not get to have access to the classified materials in connection with Gov arguing against the prima facie case.
I don’t think that appeal really causes them a lot of damage on 2, bc they would always, at any point in the appeal or on remand after appeal all the way up pretty much moot the access issue by admitting on liability and paying out rather than making SSP info available. So far the case stands for the proposition that plaintiffs have to put together a lot of info to make out a prima facie case on being illegally survielled and only at that point (a court ruling on making out the prima facie case without any classified info being used) is gov required to grant access and security clearances so that ultimate liability can be argued to the court and determined. Right now, Gov has said – even though the prima facie case is made out, we won’t grant that access and Walker has made a kind of default ruling, that in the absence of any evidence countering the prima facie argument by gov, Plaintiffs win.
So if Gov appeals, it can go to town on the prima facie case and standing issues and if it loses on them and is ordered to cooperate, they can do with the appellate order what they’ve done with the Dist Ct order – refuse to comply and get judgment against them by a kind of default, or if they think some judges are getting ready to eat the lawyers’ lunches for repetitive disobedience to orders, they can just agree to pay damages the court assesses without anteing up access to the classified info (iow, just what they are doing now)
The only risk they run on that point is that at some point a court is going to say that plaintiffs do not have to make out a prima facie case or that they can make out a prima facie case on much less than what al-Harramain has put forth. With statutes of limitation and other cases with dismissals already cooking for them, I’m not sure how big that risk would be.
OTOH, and not so much related to what they (gov) would appeal as to what Plaintiffs would cross appeal, you have the whole issue of SSP for illegal activity. But right now, you have no criminal case, just the civil case. So a win on that point in the civil case still wouldn’t necessarily result in an order to turn over classified info on how Americans in general were illegally wiretapped, vs an order that would be geared to a determination of damages for Plaintiffs.
And there’s a big part of the rub, as you note with the reference to how damages are going to be computed and how the equitable or statutory aspects relating to purging of databases and other requests. Those matters are going to make this something that Gov can’t do, easily, without digging in an fighting more. So I think they’ll keep going forward with appeals on all fronts, unless they can sit down and cut a deal with the Plaintiffs to make it worth everyone’s while to take an offer and go away, without trying to nail down how validly that offer tracks statutory and other damages.
I don’t think, unless the Plaintiffs show willing, that Walker will let Gov get by with allegations on purging (esp with the way he jumped on Gov about its argument that *maybe* there had been a FISA warrant after all) without a lot of under penalt of perjury, upchain, certification.
So given that they (gov) will likely still a complex battle on a lot of fronts unless they can cut a deal with Plaintiffs, and given the fact that they could like get through a 9th cir appeal without a lot worse happening than that they’d be told, if they still contested the prima facie case and if the 9th agreed it was a prima facie case, to have the classified meetings and they could still at that point either ignore the appellate court like they have the Dist Ct and let judgment enter or enter a motion allowing judgment to be entered against them while still not providing – kind of defaulting, I’m trying to figure out why they wouldn’t do that.
As best I can tell, the main disincentive for them would be that they end up with a Keith case on the issue which isn’t really that much raised by the case, whether or not Gov can use SSP at all for an illegal program.
That’s a argument that is still likely to have to be fought on some other fronts (and as I’ve mentioned, I think Keith is already factually answers that question) and I’m not sure if dodging it in this case reduces or increses the risk pool for them much, one way or another.
Maybe so – I’d love to see a court rule that if a plaintiff come across evidence of illegal (or unconstitutional – if the other FAC items are pursued) exec branch activity (as these guys did) in connection with the gov’s dealings with them as citizens, they and any court to whom they produce such information are NOT required (or maybe even allowed) to treat the info that goes directly to the Exec illegal/unconstitutional activity.
They’ve framed that issue best in this case – others have been slower to go for the jugular on the illegal activity assertions – so maybe this case does so substantially change their risk pool that gov will try to deal with the damages issues without preserving an appeal, but with the little I know to date about it all, I’d be surprised. fwiw.
Mary,
Thanks very much for this important analysis.
Bob in AZ
OK here is another view. I’m looking at this comparable to the situation that state AG’s often face when compelled by law to defend a statute that a legislature passed that’s onerous from the AG’s point of view or just plain unconstitutional. So a weak defense is offered up that almost assures that the law will be overturned, and the AG can say, “gosh we tried to defend the law but oh well we lost.”
Now look at the situation the Obama administration faces. There is god knows what internecine battles going on with DOJ. They’ve got a lot of heat coming at them from the intelligence establishment, and Obama is certainly aware of what happened to the last president who ran afoul of the CIA. Or, in the more elegant words of Dan Froomkin:
<And you know what’s still a mystery? The answer to these questions I posed last April: What is motivating Obama’s lawyers here? What exactly trumped his promises of transparency and the restoration of the rule of law? It’s got to be something big. Is this about not wanting to give up executive power, now that they have it? Is it about protecting Bush-era secrets? Are they terrified of rebellion in the CIA or NSA? Are Justice Department lawyers still somehow under the influence of the old regime?
Setting themselves up for summary judgement, which it looks like they did because Judge Walker clearly telegraphed that’s what he’d do if the government wouldn’t play ball, allows them some wiggle room on at least some of Froomkin’s questions.
And I’d add to this the well-established philosophy of Obama not to rock the boat too much too fast, even when the horrendous abuses of his predecessor seem to call for it. This looks to me like it may be the first step in an incremental path away from those abuses. Oh and then there is that thing about executive branch not wanting to lose power …
Um, in short, no; absolutely not. Obama has fought this case tooth and nail, just not on the merits. This is exactly the strategy Bush/Cheney was employing on the case, and you would not say they were disinterested would you?